U.S. v. Tampico

• Decision Date: 02 July 2002
• Docket Number: No. 00-20178.,00-20178.
• Citation: 297 F.3d 396
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan M. TAMPICO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.3d 396

UNITED STATES of America, Plaintiff-Appellee, v. Jonathan M. TAMPICO, Defendant-Appellant.

No. 00-20178.

United States Court of Appeals, Fifth Circuit.

July 2, 2002.

Tony Ray Roberts, McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

David B. Adler, Bellaire, TX, John Richard Donahue, Law Office of John Donahue, Waco, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas; Vanessa D. Gilmore, Judge.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HILL,^* JOLLY and BENAVIDES, Circuit Judges.

BY THE COURT:

The Supreme Court of the United States, by order in No. 01-571, Jonathan M. Tampico v. United States, granted appellant's petition for writ of certiorari, vacated the judgment in the case, and remanded it to us for further consideration in the light of Ashcroft v. Free Speech Coalition, ___ U.S. ___, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

IT IS ORDERED that the captioned case be and it is hereby remanded to the United States District Court for the Southern District of Texas for further proceedings and disposition consistent with the aforesaid order of the Supreme Court.

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

No. 00-20178.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JONATHAN M. TAMPICO, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:98-CR-485-1.

July 6, 2001

Before HILL,^* JOLLY and BENAVIDES, Circuit Judges.

PER CURIAM:^**

Jonathan Tampico appeals his conviction and sentence for the possession, receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252-2252A. Because the statute under which Tampico was convicted was constitutional, there was sufficient evidence to convict him, and there was no error in the sentence, we AFFIRM Tampico's conviction and sentence.

I

In 1989, approximately ten years before the conviction at issue here, Jonathan M. Tampico was convicted of sexually molesting a boy under the age of 14 years, and was sentenced to six years in prison in California. He was released in October 1992 on the condition that he not possess child pornography. Tampico's parole was revoked on September 12, 1995, after police discovered a large volume of child pornography at his residence. He was released again on February 23, 1996, when California authorities discovered he had discharged his parole. Although the California district attorney's office intended to file state charges for the possession of child pornography, Tampico left California and moved to Texas, without informing either the California or Texas authorities of his new address. A television broadcast of "America's Most Wanted" on July 11, 1998, led to his arrest in Texas.

After Tampico's arrest, authorities seized a large volume of child pornography from Tampico's residence and storage shed, much of which Tampico had brought from California by U-Haul. Both the individual with whom Tampico was living, Jerome Ciolio, and another individual who had obtained child pornography from Tampico, Donald Sandberg, gave statements implicating Tampico in offenses relating to child pornography.

On December 9, 1998, Tampico was indicted for violations of the federal statute prohibiting child pornography and the sexual exploitation of children. 18 U.S.C. § 2252-2252A. Specifically, Counts One through Four of the indictment charged Tampico with, respectively, possession, receipt, distribution, and reproduction of child pornography involving the sexual exploitation of minors. Count Five dealt with the forfeiture of Tampico's property.

A bench trial on stipulated facts was conducted on September 17, 1999. Tampico admitted to possession of the evidence seized by the government, stated that Sandberg had obtained certain photographs from Tampico's computer, and stipulated that the videos and photographs had been transported in interstate commerce. The government also submitted evidence, through the testimony of an FBI agent, that Sandberg and Ciolino had told the FBI that Tampico had transported a great deal of the same child pornography from California. Sandberg told the FBI that he was computer illiterate and that Tampico had printed the computer images off his computer for Sandberg. After examining the photographs, a government expert, Dr. Sheila Lahoti, determined, through Tanner analysis, that the children appeared to be between the ages of nine and eighteen years. The district court found Tampico guilty of Counts One, Two, and Three, that is, possessing, receiving, and distributing child pornography. It found him not guilty of Count Four, reproducing child pornography.

Tampico submitted over sixty objections to the Presentence Investigation Report ("PSR"). The district court addressed each of these objections, some of which the court sustained, during the sentencing hearing on February 14, 2000. The district court then sentenced Tampico to 60 months on Count One, and 360 months each for Counts Two and Three, to run concurrently. The 360-month sentence represented an upward departure, based on the general policy statement of U.S. Sentencing Guideline § 5K2.0, from the Sentencing Guideline range of 210 to 262 months of confinement. The district court gave a number of reasons for granting the upward departure, including: Tampico's departure from California without notifying the authorities within days of his release from prison for sexually assaulting a minor; the sheer volume of images involved; Tampico's continued exploitation of certain victims, even after incarceration; his involvement in the North American Man Boy Love Association ("NAMBLA"); and his extensive history of exploiting children.

II

Tampico now appeals both his conviction and his sentence. He challenges the constitutionality of 18 U.S.C. § 2256(8), the sufficiency of the evidence for his conviction on the distribution count, the district court's upward departure on his sentence, and the district court's admission of the Presentence Investigation Report ("PSR") as evidence during the sentencing hearing.¹

A

Tampico first contends that the definition of child pornography under the Child Pornography Prevention Act, 18 U.S.C. § 2252A, is vague and overbroad, and prohibits protected speech in contravention of the First Amendment. Section 2256(8), which provides the definition of child pornography for all of the counts against Tampico, defines child pornography as:

any visual depiction, including any photograph, film, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct where —

(A) the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.

19 U.S.C. § 2256(8)(emphasis added). Tampico's challenge focuses on the "appears to be" language in the statute. He contends that non-obscene, sexually explicit images that merely appear to depict minors are protected speech under the First Amendment.

Tampico's First Amendment challenge to § 2252A is foreclosed by our recent decision in United States v. Fox, 248 F.3d 394 (5th Cir.2001), which upheld the constitutionality of the "appears to be" language. In Fox, we found that § 2252A survived strict scrutiny because of the government's compelling interest in "shielding all children from sexual exploitation resulting from child pornography." Id. at 402 (quoting United States v. Mento, 231 F.3d 912, 920 (4th Cir.2000)). We also found that the statute was neither overbroad nor void for vagueness. Fox, 248 F.3d at 404-07. Thus, we reject Tampico's constitutional challenge to the statute.

B

Tampico next claims that the evidence was insufficient to prove him guilty of Count Three, the distribution of child pornography under 18 U.S.C. § 2252(a)(2). In reviewing challenges to the sufficiency of the evidence, we generally hold the evidence sufficient if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir.1995). Because Tampico failed to make and renew a motion for a judgment of acquittal, however, our review is limited to plain error review. United States v. Willis, 38 F.3d 170, 178 (5th Cir.1994). Under this standard, the conviction can be reversed only if there was a "manifest miscarriage of justice," such as a complete lack of evidence to support the verdict, or such tenuous evidence that the conviction itself was shocking. United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.2000) (citations omitted).

Tampico contends that the evidence was insufficient to convict him of distribution of child pornography because the court acquitted him of reproduction of child pornography. He argues that the government only offered evidence that Tampico distributed child pornography to Sandberg, by printing pictures off the computer. Tampico claims that a verdict that he did not reproduce the photographs is therefore inconsistent with a verdict that he distributed these photographs to Sandberg, because the reproduction of the photographs off the computer was necessary for their distribution. He also claims that while a jury may render inconsistent verdicts, a court in a bench trial may not.

The claim on which Tampico was acquitted, however, was for "knowingly reproduc[ing] any child pornography for...